R v Irani - [2002] NSWCCA 153

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Irani [2002] NSWCCA 153

FILE NUMBER(S):
60416/01

HEARING DATE(S): 6 May 2002

JUDGMENT DATE: 10/05/2002

PARTIES:
Walid Irani - Applicant
Crown - Respondent

JUDGMENT OF: Sheller JA Levine J Simpson J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70052/00

LOWER COURT JUDICIAL OFFICER: Barr J

COUNSEL:
WG Dawe QC - Crown
MC Ramage QC - Applicant

SOLICITORS:
J Li - Crown
SE O'Connor - Applicant

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60416/01
SHELLER JA
LEVINE J
SIMPSON J
Friday 10 May 2002

Regina v Walid Irani

Judgment

SIMPSON J: This is an application for leave to appeal against the severity of the sentence imposed on the applicant on 15 June 2001 by Barr J following the applicant’s plea of guilty to a charge of murder. His Honour sentenced the applicant to imprisonment for twenty years, commencing on 25 January 2000, with a non-parole period of fifteen years.
The facts of the offence were as follows. Some time in late 1999 a woman, Ms Sneza Suteski, solicited an acquaintance of the applicant, Asipeli Ben Sakisi, to assault and injure a Mr Richard Piech, one of her superiors in her place of employment. She did this because she had, over previous months, defrauded the company for which they both worked of $290,000. She was about to leave her employment, but planned, in her remaining time, to execute one or more further major frauds to secure for herself hundreds of thousands of dollars. She feared that Mr Piech would detect her defalcations, and therefore sought to have him disabled from work for a period of two to three weeks to enable her to perpetrate the fraud undetected.
Sakisi contacted the applicant and offered him the task. He told him that “a girl wants a person out of work for two weeks and all you’ve got to do is hit him.” The applicant agreed. Suteski agreed to pay each man $3,000 when Mr Piech failed to turn up for work.
On 17 December 1999, Sakisi and the applicant and Sakisi’s girlfiend, Kaycee Salem, travelled in the applicant’s car to the address they had been given by Suteski as that of Mr Piech. The purpose of the journey was to familiarise themselves with the location. A neighbour observed them and challenged them.
On 20 December, the same three, and Suteski, went to a club which Mr Piech was known to frequent and at which he was then present. Suteski identified Mr Piech to the applicant. Mr Piech left the club and walked with a woman to the car park. The applicant observed them. He had intended to assault Mr Piech in the car park, but decided against that course of action when he saw that Mr Piech was accompanied by the woman. Instead, he drove to the vicinity of Mr Piech’s residence and there waited for him. As Mr Piech walked along the footpath the applicant hit him on the head with a hammer. Mr Piech, although stunned, struggled with the applicant who dropped the hammer and produced a knife, which he used to stab Mr Piech six times. One knife wound pierced the upper left chest perforating the left lung and aorta and ultimately causing Mr Piech’s death. The applicant ran off to his car.
The applicant came under suspicion fairly quickly because the same neighbour who had challenged the party on the 17 December reconnaissance had noted the number plate of the car on that occasion, and was also attracted to the scene of the murder by the sounds of the struggle. She recognised the vehicle, which the applicant was again using. (Although one digit of the registration plate given by this witness to police was incorrect, her information was sufficient to enable police to investigate the vehicle, which was in fact registered in the name of the applicant’s father.)
The applicant was first interviewed on 23 December 1999. The transcript of that interview was not in evidence but it is clear that he denied knowledge of, or involvement in, Mr Piech’s murder. He was again interviewed on 13 January 2000, and again denied involvement. Indeed, on this occasion, he gave an elaborately fabricated account of his movements of 20 December and an equally elaborately fabricated explanation for having told lies to the police on 23 December. He was arrested and charged on 25 January 2000, and again interviewed. On this occasion he made a full confession and implicated both Sakisi and Suteski. He said that he had used heroin on the day of the murder and believed that he would have been under the influence of the drug at the time he hit and stabbed Mr Piech. He said that he had “never ever” intended to kill Mr Piech and that his death was a “pure accident”. He was specifically asked if he had intended to use the knife and said that he had not been sure and that when he rushed to Mr Piech’s house, he “grabbed the knife just in case something happened”. He said that he had been desperate for cash to buy drugs, that the death was an accident, that he was deeply sorry and was prepared to “do the time” for his crime. He accompanied police on a videotaped walk around the murder scene. He agreed to give evidence for the Crown against the co-offenders. (Since being sentenced, he has in fact honoured his promise to give evidence against Suteski. During the hearing of the application counsel for the Crown advised the Court that he had given his evidence “well and in a forthright manner”. Suteski was convicted of murder. Sakesi pleaded guilty to a lesser charge, and Salem received an indemnity from the Crown in return for her agreement to give evidence.)
Notwithstanding the applicant’s admissions to police, he maintained his plea of not guilty until 5 February 2001. At that time a trial had been fixed to commence on 12 March 2001. No explanation for the long delay in changing his plea was forthcoming; given the admissions of 25 January 2000, and that he told a psychiatrist on 21 June 2000 that he intended to plead guilty, this is a little puzzling.
The applicant gave evidence in the sentencing proceedings. He repeated his willingness to give evidence against Suteski and to assist in any way required by the prosecution authorities. He said he had received about $500, which he had spent on drugs. He expressed sorrow for his conduct. He said that, at the time of the murder, his drug habit had been becoming more serious, so much so that on occasions his parents had barricaded the entrances to his home, to prevent his leaving.
Despite his willingness to assist police in the prosecution of Suteski, he said that he did not wish to be held on protection, and was aware of the risks that entailed.
Whilst in custody (at that stage, he had been in custody for about eighteen months) he had undertaken certain courses and had been drug free. He blamed his drug addiction for his conduct.
Also before his Honour were a psychiatric and a psychological report. These disclosed no recognised psychiatric illness. Dr Westmore, the forensic psychiatrist who examined him in June 2000, diagnosed “substance abuse/dependency”, and noted evidence of early behavioural disturbances which he thought might represent some antisocial traits, probably related to the drug abuse. Ms Barrier, the psychologist (who assessed him in March 2001), noticed significant scores on narcissistic, self defeating, depressive and anti-social scales, and described a lack of regard for others, impulsivity, insensitivity and at times ruthlessness, and high levels of anxiety and dysthymia, with marked feelings of tension, anxiety and hyper-vigilance.
The applicant was born on 1 January 1980 in Lebanon, and migrated with his family to Australia at the age of eleven. The family was stable and law abiding. The applicant attended the local high school. He began using cannabis at the age of thirteen or fourteen, and heroin at 15. He became addicted. His education suffered. He began using cocaine at about eighteen. He made two attempts to become free of drugs, but neither was successful. He was two weeks short of his twentieth birthday when he murdered Mr Piech. He had a criminal record which was, relatively speaking, of little significance. He had been found guilty in the Children’s Court in 1997 of larceny, in respect of which he was required to perform sixty hours of community service; in 1999 he was convicted of shoplifting goods to the value of less than $2,000 and receiving stolen property for the same value and was on each count fined $400. Three months later he was again convicted of shoplifting goods of the value of less than $2,000 and was again fined $400. Three months later again he was convicted on two counts of having custody of an offensive implement in a public place, having custody of a knife in a public place, driving an unregistered and uninsured motor vehicle, larceny of property to the value of less than $2,000, maliciously destroying or damaging property to the value of less than $2,000 and shoplifting goods of a value of less than $2,000. A variety of penalties were imposed, including three community service orders, each of one hundred hours, fines, and a reconnaissance conditioned upon attending for drug and alcohol counselling.

the remarks on sentence

At the time of sentencing the applicant had promised but had not had the opportunity to give evidence against Suteski. He has now done so. However, his Honour assumed that he would, and that his evidence would be of considerable assistance to the prosecution authorities. He took into account, however, that the offer to assist was of little value while the applicant maintained his plea of not guilty. His Honour also took into account the plea of guilty, “especially its utilitarian value”. However, he expressed himself to be sceptical about the applicant’s claimed contrition. This he particularly related to the delay in the formal change of plea. He discounted the sentence he would otherwise have imposed by 40%, to take account not only of the assistance to authorities and the plea of guilty, but also all other favourable features. In doing so, his Honour expressly had in mind the need to maintain a proper relationship between the objective gravity of the offence and the ultimate sentence.
His Honour considered that, with the strong family support the applicant has, and the long non-parole period that the offence called for, the applicant’s prospects of recovering from his drug addiction and therefore of rehabilitation were reasonable.
His Honour returned to a consideration of the appropriate sentence. He said that a contract murder done with intent to kill would have attracted the maximum sentence of life imprisonment. But he recognised that the applicant’s agreement with Suteski was not to kill, but to cause grievous bodily harm. He therefore selected the sentence he did. Although he did not specify his starting point, simple mathematics discloses that, for a sentence of twenty years to result from a discount of 40%, the starting point was thirty three and one third years.
Finally, his Honour declined to find special circumstances within s44 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) in order to vary the statutory ratio between the head sentence and the non-parole period. His reason for this, briefly stated, was that the sentence would necessarily incorporate a lengthy period when the applicant was eligible (subject, obviously, to his good behaviour during the non-parole period) for release on parole, allowing sufficient time for supervision, rehabilitation, and return to the community.
the grounds of the application
On behalf of the applicant it was submitted that the sentence was unduly harsh – meaning manifestly excessive – in all the circumstances of the case. It was further submitted that the sentencing judge erred in a number of specific respects. These were particularised as:
the starting point (before discount) of thirty three and a third years was unduly excessive;
failure to give any, or any sufficient, weight to the contrition displayed;
failure to give weight, or sufficient weight, to the assistance offered to police;
failure to give sufficient weight to the applicant’s plea of guilty;
failure to give sufficient weight to the finding that the applicant did not intend to kill;
failure to give sufficient weight to the applicant’s addiction;
failure to give sufficient weight to the applicant’s youth at the time of the offence;
failure to give sufficient weight to what he found were reasonable prospects of rehabilitation;
failure to find special circumstances within the meaning of s44 of the Sentencing Procedure Act.
During the course of oral argument, senior counsel for the applicant drew specific attention to two matters. The first of these concerned the evidence of contrition, which the sentencing judge was hesitant to accept. Senior counsel pointed to expressions of contrition contained in the interview of 25 January 2000, when the applicant is recorded as saying:
“Well, I done a crime, I feel really bad about it, and I thought I could get over it, but, you know what they say, if your (sic) lying, you’ll never get away with lying and I just can’t get on with it, like, knowing that I killed someone, you know.”
Later in the same interview the applicant maintained that his intention was only to hurt Mr Piech, that he’d had no intention to kill him, that his death was an accident and that he was “deeply sorry about it” and “prepared to do the time”. Similar expressions of regret were reported by Dr Westmore and by Ms Barrier who recorded:
“He also told me that he thought every day about what he had done and revisualised the crime scene. He said he felt particularly sorry for the victim’s mother who he knows had been attending his court appearances. He asked if it were possible for the deceased’s mother to ever forgive him, and would she understand it was not his intention to kill her son? … [The applicant] demonstrated a growing sense of empathy for the deceased and his family, particularly his mother.”
Senior counsel referred this court to the decision of the High Court in Neal v R (1982) 149 CLR 305, as support for the proposition that:
“…regret and contrition can sound quite independently to accepting that one is guilty of murder. A court can find contrition even though the accused has pleaded not guilty to the charge and gone to trial.”
The sentencing judge’s scepticism about the genuineness of the applicant’s contrition was directly related to the delay in the change of plea, of which, as I have observed, there has been no explanation. However, the applicant gave oral evidence during the course of which he stated his regret for his actions. The sentencing judge was entitled to be sceptical, having had the opportunity of observing the applicant. It would not be proper, on this application, to interfere with what is essentially a finding of fact. Having regard to the circumstances of the case, and with due regard to what was said by Murphy J in Neal at p 315, contrition (no matter how deeply felt) could have only modest weight in the sentencing process. Contrition is generally, in my view, properly to be seen as indicative of rehabilitation prospects, and the sentencing judge gave the applicant the benefit of such a finding.
Another specific matter raised on behalf of the applicant concerned the weight attributed to his plea of guilty. S22 of the Sentencing Procedure Act entitles the applicant to have the fact of his plea of guilty taken into account on sentencing, and permits the court to impose a lesser penalty than it otherwise would have done. Sub-s (2), requiring that a court that does not reduce the sentence to provide reasons, suggests that, prima facie, an offender who pleads guilty is entitled to some reduction in the sentence. In R v Thomson [2000] NSWCCA 309; 49 NSWLR 383, this court held that the utilitarian value of a plea should generally be assessed in the range of 10-15% discount on sentence, the primary consideration being the timing of the plea. The effect of that decision is unaffected by the subsequent decision of the High Court, relevant to sentencing legislation of Western Australia, in Cameron v R [2002] HCA 6, as yet unreported, 14 February 2002. On behalf of the applicant it was submitted that the overall discount of 40% given to the applicant in respect of his considerable assistance to the authorities and his plea of guilty, was therefore inadequate, and that the applicant was entitled to what was described as “the full discount” under s22 and the guideline in Thomson. Reference was also made to s23 of the Sentencing Procedure Act, which formalises the discretion to reduce a sentence by reason of assistance to prosecution authorities; in tandem with the submission concerning the weight accorded to the plea of guilty, it was submitted that inadequate weight must have been given to the assistance.
In considering these submissions it is necessary, also, to bear in mind the provisions of s23(3) of the Sentencing Procedure Act, which is in the following terms:
“(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.”
Further, it was submitted that no, or inadequate, weight was given to the applicant’s youth as the time of the commission of the offence.
I am unable to conclude that the sentence imposed was manifestly excessive. I am not satisfied, firstly, that the starting point of thirty three and one third years was, for what was in essence a contract killing (although not intended to be a killing) was outside the range properly available (although I accept that it was a heavy starting point); I am not satisfied, secondly, that the applicant’s plea of guilty or his assistance warranted a more substantial discount than a total of 40%; and I am far from satisfied that the sentence ultimately imposed did other than recognise the objective seriousness of the applicant’s crime.
The final argument advanced on behalf of the applicant concerned the decision of the sentencing judge to decline to find special circumstances within the meaning of s44 of the Sentencing Procedure Act warranting a departure from the statutory proportions between the head sentence and the non-parole period.
In R v Simpson [2001] NSWCCA 534; as yet unreported, 19 December 2001, a specially constituted five judge bench of this court held that the scope of the considerations relevant to the determination of special circumstances encompasses the full range of issues relevant to the determination of the minimum period of actual incarceration. Accordingly, it was submitted that the sentencing judge unduly confined himself, and that this can be seen by his reference to the period of supervision which will be available to the applicant on his eventual release. One matter said to be so relevant is the circumstance that the applicant is likely to serve part of his sentence in protective custody as a consequence of his having given evidence against Suteski. In this regard it is to be remembered that, as at the time of sentencing, the applicant expressed his preference to serve his sentence other than in protective custody. The sentencing judge was, however, aware of the potential for the applicant to enter protective custody with the restrictions that regime ordinarily implies; but he added that he did not consider this a matter of great relative importance.
I can see no error in this approach. It would have been open to the sentencing judge to give more weight to this consideration, but it was not obligatory for him to do so. There is, therefore, no error demonstrated. In this regard it is not to be overlooked that the applicant committed this offence just a month after having been released on an a twelve month recognizance to be of good behaviour and the imposition of three separate orders that he perform community service, following his convictions in the Kogarah Local Court on 16 November 1999, for a series of offences.

In my opinion the sentence imposed was not manifestly excessive and was a proper one to reflect all of the circumstances. The sentencing remarks show that all relevant factors were taken into account. Another judge may have given more weight to some circumstances resulting in a lower sentence, but that is not of itself indicative of error. No error has been identified. I would, accordingly, grant leave to appeal but dismiss the appeal.
SHELLER JA: I agree with Simpson J.
LEVINE J: I agree with Simpson J.

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LAST UPDATED: 10/05/2002